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§ 22-401. Service-Connected Disability Retirement Benefits. 113
(1) Qualification. Any member found by the Board to be permanently incapacitated from further performance of duty, which incapacity resulted solely from the performance of the duties of the member's position and was not caused by the member's own wrongful conduct, shall be retired and shall receive service-connected disability retirement benefits. To approve an application for such benefits, the Board must find that:
(a) the member is mentally or physically totally incapacitated from the further performance of the duties of the member's position;
(b) such disability is likely to be permanent;
(c) such disability existed while the member was still in the employ of the City;
(d) an application for service-connected disability retirement benefits is filed within one (1) year after separation from service, except as provided in subsection 22-401(3).
(a) Applications for service-connected disability retirement benefits shall be acted upon by the Board promptly upon receipt thereof. Subject to the provisions of Section 22-1203 (Medical Panel), the decision of the Board as to eligibility for benefits under this Section shall be final and conclusive.
(3) Exclusivity of benefit. No member (other than a Fire Employee represented by Local 22 of the I.A.F.F. or a Sheriff's Department employee represented by Lodge 5 of the F.O.P.) who receives or has received an award of workers' compensation benefits, and who could otherwise qualify for a service-connected disability retirement benefit, shall have the option of forgoing the service-connected disability benefit and to receive instead a retirement benefit based on service under Section 22-301, Section 22-302 or Section 22-303 (Service, Separation Service, Optional Early Retirement Benefits) of this Title. If such a member has applied for or been granted a service retirement benefit, separation retirement benefit or early retirement benefit and also receives or has received an award of workers' compensation for total or partial disability, the Board shall treat the member's retirement application as if it were for a service-connected disability retirement benefit. If the Board finds that the member otherwise meets the requirements of subsection (1) of this Section, the member shall be so retired. If such a member has begun to receive retirement benefits under Section 22-301, Section 22-302 or Section 22-303, the benefit shall be converted to a service-connected disability retirement benefit, effective as of the date of the member's separation from service.
(4) Benefit Amount. Upon retirement for service-connected disability, a member shall receive an annual retirement benefit equal to seventy percent (70%) of the member's final compensation, as it may be adjusted by subsection 22-401(5) and Section 22-306, subject to the provisions of Section 22-403 (Reexamination of Disabled Members). The member may also elect to receive either a lump-sum payment equal to the member contributions to the Retirement System or, in lieu thereof, any survivor benefit option available to the member's plan under Section 22-306. The member's election shall be irrevocable. A member of Plan D, Plan J, Plan A, Plan B, or Plan X or a police or fire member of Plan '10 who fails to make the foregoing election prior to retirement will be deemed to have elected Option 4. 114
(a) If the member receives or is entitled to receive, for and during a period of disability, compensation from the City Treasury of the City, workers' compensation benefits or payments in the nature of workers' compensation benefits from any source, such disability retirement benefits shall be reduced by the amount of such compensation, benefits or payments for the period such compensation, benefits or payments are paid or payable even though all or part of the amount so payable may be wholly or partially commuted, except that:
(.1) for a member who is not a Fire Employee or Sheriff's Department employee specifically referenced in subsection 22-401(3), the service-connected disability benefits shall not be reduced on account of any medical or surgical benefits or facilities paid, payable or afforded, or any benefits for specific losses under workers' compensation received from any source, as compensation for any incapacity resulting from a completely different incident, hazard, or working condition from the one that is the basis for the member's service-connected disability retirement benefits; and
(.2) the above reduction in benefits shall not apply to any medical or surgical benefits paid or payable, or facilities afforded or any benefits for specific loss under workers' compensation for Fire Employees or Sheriff's Department employees represented by Lodge 5 of the F.O.P.
(b) In the event of a conversion from any other disability retirement benefit under subsection 22-401(3), the member will receive that portion of the member's contributions which had not been paid as a benefit as of the effective date of the award of workers' compensation.
(c) A member of Plan A, Plan X, Plan B, Plan D or a Fire or Police employee member of Plan '10, who has retired or hereafter retires for service-connected disability, shall receive a retirement benefit of at least one thousand dollars ($1,000) per month, subject to the provisions of subsection 22-401(4)(a). Such minimum monthly payment shall be required only as to the member's initial unadjusted monthly benefit amount, prior to the application of any distribution option and prior to any division of the benefit as a result of any court order, including a Domestic Relations Order, or an agreement by the member. 115
(a) The periodic adjustment shall be made only with respect to a member who has been determined by the Board to be totally disabled, provided that such disability existed while the member was still in the employ of the City;
(b) It is not the intent of this Section to make the periodic adjustment available to members who, after separation from City employment, later become totally disabled; the periodic adjustment under this Section shall be made only for members who have been determined by the Board to be totally disabled, as defined in this Title, and that such liability existed while the member was still in the employ of the City;
(c) With respect to a retired member who was a Civil Service employee, "final compensation" shall be annually adjusted to reflect any percentage increase in the rate of pay for positions in the employee's class during the preceding year;
(d) With respect to a retired member who as of the separation date held a position exempt from Civil Service, "final compensation" shall be annually adjusted to reflect the average percentage increase in the rate of pay of nonrepresented Civil Service employees during the preceding year;
(e) No annual adjustment under this subsection (4) shall be made until the seventh (7th) anniversary of the date of the member's service-connected disability retirement;
(f) A member's initial benefit adjustment shall be calculated as follows: in the eighth year following the member's separation from service, the member's retirement benefit shall be increased by the percentage raise, if any, given in the previous year to employees in the applicable class under subsection (c) or (d) above; there shall be no adjustment made for raises given the previous six (6) years;
(g) No annual adjustment shall be made on any anniversary date of the member's separation from service on or after the member's sixty-fifth (65th) birthday;
(h) A member determined by the Board to be totally disabled at the time of separation from service and who receives earned income while receiving service-connected disability benefits shall be automatically reclassified as not totally disabled and shall thereafter be forever ineligible for the periodic adjustment provided for in this subsection;
(i) A member also receiving Social Security disability insurance benefits shall be ineligible for any periodic adjustment under this subsection; and
(j) The periodic adjustment shall not apply to disability benefits for former Fire Employees. 117
Amended by deleting former subsections 22-401(4)(c) and 22-401(4)(d), Bill No. 040326 (became law February 17, 2005). Section 2 of Bill No. 040326 provides: "Repeal. To the extent inconsistent with this Ordinance, the Ordinance of July 12, 1993 (Bill No. 589), 1993 Ordinances at 1034, is repealed." Section 3 of Bill No. 040326 provides: "Effective Date. This Ordinance shall be effective retroactive to July 12, 1993." The deleted provisions provided for a reduction in pension for earned outside income, an associated requirement to provide copies of tax returns, and an exception for certain disabilities incurred in "heroic" circumstances. On March 21, 2005, the City Solicitor issued an Opinion advising that Council was without power to make Bill No. 040326 retroactive and that the Ordinance can lawfully be applied only with respect to current City employees who become separated and entitled to a disability pension after the latter of February 14, 2005 and the expiration of the collective bargaining agreement applicable to that employee.
Amended, Bill No. 000342 (approved January 23, 2001). Section 2 of Bill No. 000342 reads as follows: "Effective Date. This Ordinance shall be effective retroactively to January 13, 1999, except for amendments to Code Section 22-310, which shall be effective retroactively to June 28, 1999, and except that, as to members of Plan L, any part of this Ordinance that represents an increase or diminishment in the benefit rights of such members shall not apply to an elected official during any term of office to which such official was elected prior to the effective date of this Ordinance, but shall only apply to an elected official during a term of office to which such official was elected after the effective date of this Ordinance."
Subsection 22-401(5)(j) amended by Bill No. 000642 (approved February 21, 2001). Section 3 of the bill provided that the amendment "shall apply to any police member who separated or separates from City employment on or after March 30, 1993, provided that the City's medical director did not make a determination prior to March 30, 1993 that such member was permanently and partially disabled."